Appendix — Fitzgerald v. Thompson

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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PRECEDENTIAL EFFECT. CITATION TO SUM-

MARY ORDERS FILED AFTER JANUARY 1, 2007,

IS PERMITTED AND IS GOVERNED BY THIS

COURT'S LOCAL RULE 32.1 AND FEDERAL RULE

OF APPELLATE PROCEDURE 32.1. IN A BRIEF

OR OTHER PAPER IN WHICH A LITIGANT CITES

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WHICH A CITATION APPEARS, AT LEAST ONE

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2a

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 16th

day of November, two thousand and nine.

Present:

ROSEMARY S. POOLER,

ROBERT A. KATZMANN,

DEBRA ANN LIVINGSTON

Circuit Judges.

(09-0354-cv)

KENYON B. FITZGERALD JR., PETER SCOVILLE

WELLS, SIDNEY SILLER, DISABLED AMERICAN

VETERANS DEPARTMENT OF NEW YORK, INC.,

Plaintiffs-Appellants,

— |

WADE F-. B. THOMPSON, ELIHU ROSE, ARIE L. KOPELMAN,

STEPHEN LASH, EDWARD KLEIN, REBECCA ROBERT-

SON, KIRSTEN REOCH, CHARLES GARGANO, WILLIAM

SHERMAN, CAROL BERGENS, JOHN DOE, MARY ROE,

SEVENTH REGIMENT ARMORY CONSERVANCY, INC.,

Defendants-Appellees.

3a

Appearing for Appellants: Whitney North Seymour,

Jr. (Gabriel North Seymour, on the brief)

Appearing for Appellees: Lewis R. Clayton (Barbara

R. Llanes, on the brief), Michael S. Belohlavek,

Senior Counsel (Patrick J. Walsh, Assistant Solic-

itor General of Counsel, on the brief), on behalf

of Andrew M. Cuomo, Attorney General of the

State of New York

Appeal from the United States District Court for

the Southern District of New York (Jones, J).

ON CONSIDERATION WHEREOF, IT 1S HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of said District Court be and it hereby is

AFFIRMED.

This case relates to a proposed restoration of the

Seventh Regiment Armory (the “Armory”) located at

643 Park Avenue in Manhattan. Appellants filed a

complaint seeking, inter alia, declaratory judgment

and injunctive relief invalidating a 2004 New York

State statute authorizing a 2006 lease of the Armory

to the Seventh Regiment Armory Conservancy, Inc.

(“Conservancy”). Appellants argued that the statute

violated several of their constitutional rights under

the First Amendment, the Takings Clause of the

Fifth Amendment, and the Due Process and the

Equal Protection Clause of the Fourteenth Amend-

ment. On January 5, 2009, Judge Barbara Jones

granted defendants’ motion to dismiss on the

grounds that plaintiffs lacked standing. Appellants

now appeal from this judgment. We assume the par-

4a

ties’ familiarity with the underlying facts, procedu-

ral history, and specification of issues for review.

This Court reviews a district court’s dismissal of a

complaint under rules 12(b)(1) and (6) de novo.

Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326,

329 (2d Cir. 1997). Further, we must accept all fac-

tual allegations in the complaint as true and draw

inferences in the light most favorable to the appel-

lants. Id.

Upon review, we conclude that the district court

was correct that appellants did not have Art. III

standing. The “irreducible constitutional minimum”

of standing has three elements:

(1) there must be an “‘injury in fact,’—an

invasion of a legally protected interest

which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural

or hypothetical;” (2) there must be “a causal

connection between the injury and the con-

duct complained of;” and (3) “it must be

likely, as opposed to merely speculative,

that the injury will be redressed by a favor-

able decision.”

Port Washington Teachers’ Ass’n v. Bd. of Ed. of

Port Washington, 478 F.3d 494, 498 (2d Cir. 2007)

(quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992)). Appellants have failed to show any

injuries in fact.

First, appellants’ complaint failed to allege a prop-

erty interest in the Armory. U.S. Olympic Comm. v.

Intelicense Corp., S.A., 737 F.2d 263, 268 (2d Cir.

1984) (“Only the owner of an interest in property at

the time of the alleged taking has standing to assert

that a taking has occurred.”). The complaint con-

5a

tends that, the Armory is privately owned by “the

trustees of the Seventh Regiment Armory fund,” but

fails to allege that appellants are the trustees or the

successors of the trustees. Instead, appellants bring

this action as veterans (although only Wells is a vet-

eran of the Seventh Regiment specifically), and

directors of the 107th Infantry Regiment Historical

Society. They allege no official connection between

the Seventh Regiment Historical Society, and the

Seventh Regiment of the National Guard or its

sucessor unit, the 107th Corps Support Group of the

New York Armory National Guard. Therefore, Appel-

lants have no standing to bring a takings claim.

Second, Appellants argue they have been denied a

free speech right to “tell[ ] stories of the experiences

of citizen-soldiers” by installing a military history

museum, a free association right to hold Armory

meetings with other veterans based on “collegiality

and shared experiences,” and a statutory right to

free access to the Armory. They argue that Chapter

482 (and the Conservancy plans to convert interior

spaces into “commercial restaurant, cocktail lounge

and banquet and reception facilities”) “effectively”

denies them free access.

Appellants do not argue that Chapter 482 on its

face violates any of appellants’ asserted rights, nor

did their complaint allege that Chapier 482 has been

applied to violate these rights. Chapter 482 changes

the access procedure to the Armory only in that

appellants must now submit their application for

access to a different person. N.Y. Mil. Law. §180-a

(3)(c)(i). Appellants did not allege that they have

applied for and been denied access. See Moose

Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67 (1972)

(finding plaintiff lacked standing to challenge

6a

racially discriminatory membership policy because

he had never applied for membership). At present,

any injury is hypothetical.

Any injury from failure to install a museum is sim-

ilarly hypothetical because appellants did not allege

that they have applied for and been denied access to

use the Armory for a museum. Even if appellants

were denied, they have not asserted a right to build

a museum in the Armory. While the Armory may be,

as appellants assert, a natural choice for the

museum, the Historical Society Charter to build a

museum does not state where the museum will be

located, and makes no mention at all of the Armory.

Thus, appellants have not shown any right to install

a museum in the Armory.

The Equal Protection Claim fails for the same rea-

sons: Chapter 482 does not deny appellants access

to the Armory on its face, nor did they allege that

they have been denied access in fact. Appellants

have not alleged that they have been treated differ-

ently than any other group.

Accordingly, the judgment of ‘he district court

hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

By:

7a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

07 CV 6851 (BSJ)

KENYON B. FITZGERALD, JR., PETER SCOVILLE WELLS,

SIDNEY SILLER, and DISABLED AMERICAN

VETERANS DEPARTMENT OF NEW YORK, INC.,

Plaintiffs,

WADE F.B. THOMPSON, ELIHU ROSE, ARIE L. KOPELMAN,

STEPHEN LASH, EDWARD KLEIN, REBECCA ROBERT-

SON, KIRSTEN REOCH, CHARLES GARGANO, WILLIAM

SHERMAN, CAROL BERGENS, JOHN DOE, MARY ROE

and SEVENTH ARMORY CONSERVANCY, INC.,

Defendanis.

OPINION & ORDER

BARBARA S. JONES

UNITED STATES DISTRICT JUDGE

This action relates to the proposed restoration

and renovation of the historic Seventh Regiment

Armory (the “Armory”) located at 643 Park Avenue

in Manhattan. Plaintiffs Kenyon B. Fitzgerald, Jr.

(“Fitzgerald”), Peter Scoville Wells (“Wells”), Sidney

8a

Siller (“Siller”) and the Disabled American Veterans

Department of New York, Inc. (collectively, “Plain-

tiffs”) seek declaratory and injunctive relief invali-

dating the New York statute authorizing a lease of

the Armory to the Seventh Regiment Armory Con-

servancy (the “Conservancy” ). Plaintiffs assert that

the enactment and implementation of this statute

violates certain provisions of the Constitution of the

United States and several of the Plaintiffs’ rights

under state common law. In response, Defendants

Carol Berens and William Sherman (“State Defen-

dants”), and Defendants Wade F.B. Thompson, Elihu

Rose, Arie L. Kopelman, Stephen Lash, Rebecca

Robertson, Kirsten Reoch, and the Conservancy

(the “Conservancy Defendants”) (collectively, the

“Defendants”), each move to dismiss Plaintiffs’ Com-

plaint, pursuant to Federal Rules of Civil Procedure

12(b)(1), 12(b)(5), and 12(b)(6). For the reasons

that follow, the Court GRANTS their motions.

BACKGROUND '

Plaintiffs Fitzgerald and Wells are veterans of the

Armed Forces of the United States purporting to

| The following factual allegations are taken from the

Complaint and the exhibits attached thereto. The Court does not

consider the exhibits and affidavits filed by Defendants unless

otherwise noted. In determining a motion to dismiss, the Court's

review is generally limited to the Complaint, as well as any doc-

uments incorporated by reference therein. See !/.S. ex. rel. Ellis

v. Sheikh, No. 05-CV-6146L, 2008 WL 4761875, at *2 (W.D.N_Y.

Oct. 31, 2008); but see Papasan wv. Allain, 478 U.S. 265, 269

(1986) (“[A]lthough this case comes to us on a motion to dismiss

under Federal Rule of Civil Procedure 12(b), we are not pre-

cluded in our review of the complaint from taking notice of

items in the public record.”).

Ya

represent a class of Seventh Regiment veterans.

(Compl. qq 3-4.) Fitzgerald and Wells are also offi-

cers of the 107th Infantry Regiment Historical Soci-

ety (the “Historical Society”) (Compl. 94 3-4.), an

organization granted a charter by the New York

State Education Department in 1964 to collect mem-

orabilia from the Seventh Regiment and establish a

museum of such memorabilia (Compl. 4 41). Plaintiff

Siller is the Department Adjutant for the Disabled

American Veterans Department of New York, Inc.

(Compl. 45), a veteran’s organization granted use of

the armories in New York (Compl. 4 6). Siller is him-

self a veteran, although not of the Seventh Regi-

ment. (Compl. 4 5.)

Built in the 1870s for the Seventh Regiment—

which traces its provenance to a militia battalion

formed in 1824 as the “National Guard”—the Armory

is a National Historic Landmark. (Compl. qq 12-13.)

In an 1873 statute, the New York State legislature

directed the City to lease to field officers of the Sev-

enth Regiment, and their successors in office, a plot

of ground belonging to the City for “the public pur-

poses of said regiment.” (Compl. 4 16.) The field offi-

cers of the Seventh Regiment were authorized and

empowere] to accept the lease and the site on

behalf of the Regiment to be thereafter “exclusively

used for an armory and drill rooms by the Regi-

ment.” (Compl. 4 16.) On September 23, 1874, pur-

suant to further State legislation enacted that year,

the City and the field officers entered into such a

lease (the “1874 lease”). (Comp!. 418.) The terms of

the lease were extended on April 23, 1879 (the “1879

lease”) “for and during the period the regiment shall

exist and act as a military organization, ane desire

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to occupy said armory for its lawful purposes.”

(Compl. 4 19.)

Under a law also passed in 1879, the New York

State legislature authorized the board of officers of

the Seventh Regiment to issue bonds in the name of

the Regiment to complete construction of the

Armory buiiding. (Compl. 421.) In order to secure

payment of the bonds, the legislature authorized the

board of officers to convey the leased property and

the Armory to “the trustees of the Seventh Regiment

Armory fund” and their successors “in trust.”

(Compl. 4 21.) The bonds, issued and sold in 1879,

were redeemed from private monies raised from

donations and several private groups affiliated with

members of the Regiment. (Compl. 4 21-22.) No State

funds were used in erecting the Armory. (Compl.

1 23.)

By a statute passed in 1893, the field officers of

the Seventh Regiment were designated as Trustees

of the Armory (“Trustees”). (Compl. 424.) The

Trustees are responsible for holding the Armory

solely and exclusively for the public purposes of the

Regiment. They are also charged with the duty of

maintaining and improving the Armory. (Compl. ¥ 24,

Ex. C.) In recent years, however, the Armory has

fallen into a state of disrepair. (Compl. 4 35.)

In or about July 2000, without consent or approval

of the Trustees, the Empire State Development Cor-

poration (“ESDC”) and the State Division of Military

and Naval Affairs (“DMNA”) issued a Request for

Proposals (“RFP”), purporting to seek a developer

for the reuse of the Armory. (Compl. 4.36.) The RFP

purported to offer the Armory a lease to such devel-

oper, “without regard to the terms of the City’s lease

or the ownership rights of the Regiment.” (Compl.

lla

136.) In response to the RFP, the Conservancy, a

not-for-profit corporation organized under the laws

of the State of New York (Compl. 410), submitted its

bid for restoration of the Armory (Compl. 4 37). On

September 9, 2001, ESDC issued a letter designating

the Conservancy the “Preferred Proposer” for the

restoration of the Armory. (Compl. 4 37.)

In order to implement the Conservancy’s plan, in

August of 2004, the New York Sitate Legislature

enacted Chapter 482 of the Laws of 2004 (“Chapter

482”). (Compl. 138.) Chapter 482 amended the Mil-

itary Law of the State of New York and the New York

State Urban Development Act. (Compl. 4 38.) Chap-

ter 482 provides, in short, for (1) the lease of the

Armory to the Conservancy for 99 years; (2) the

restoration and preservation of the Armory building;

(3) the use of the Armory for civic and cultural

events; (4) the continued military character of the

Armory; and (5) the continued presence of the

women’s shelter on the premises. (Compl. 438,

Ex. D.)

Based upon the foregoing facts, the Complaint

asserts the following causes of action. Claim One

asserts a violation of the Due Process Clause of the

Fourteenth Amendment of the United States Con-

stitution on the ground that Chapter 482 constitutes

a taking of both the Seventh Regiment's property,

the Armory’s property, and Plaintiffs’ right of access

to the Armory. (Compl. 99 70-72.) Claim Two asserts

a violation of the Public Use Clause of the Fifth

Amendment of the Constitution on the ground that

the lease of the Armory to the Conservancy is an

improper transfer of the Seventh Regiment’s prop-

erty for the benefit of a known private party, and

that the stated public purpose of Chapter 482 is

l2a

incidental to the private benefits that will be con-

ferred upon the Conservancy. (Compl. ¥¥ 74-77.)

Claim Three asserts a violation of the Contracts

Clause of the Fifth Amendment of the Constitution

on the ground that Chapter 482 did not establish any

public purpose to justify cancellation of the City’s

1874 and 1879 leases of Armory property to the Reg-

iment and its successor units. (Compl. 94 79-80.)

Claim Four asserts a violation of section 10 of the

New York State Urban Development Corporation Act

(the “UDCA”), which requires the ESDC to make a

finding of need for a civic project in the area in

which the project is to be located. (Compl. 94 82-91.)

Claim Five asserts that Defendants tortiously inter-

fered with the City’s 1874 and 1879 leases through

“bid rigging, illegal favoritism and fraud.” (Compl.

11 92-93.) Claim Six asserts a claim for imposition of

a constructive trust and accounting of all funds

received by the Conservancy. (Compl. 99 95-99.)

Finally, Claim Seven asserts violations of 42 U.S.C.

§ 1983 on the ground that Defendants deprived

Plaintiffs of their constitutionally protected statu-

tory and contractual rights, their rights to expres-

sion, their right of assembly and statutory right of

access to the Armory, and their due process and

equa! protection rights under the Fourteenth

Amendment of the Constitution. (Compl. qq 101-04.)

DISCUSSION

I. Defendants’ Challenges

Defendants seek to dismiss Plaintiffs’ Complaint

on the grounds that (1) Plaintiffs lack standing to

maintain this action; (2) this Court lacks personal

jurisdiction over several individual Defendants:

13a

(3) the Complaint fails to state a claim under either

the Public Use or Contract Clauses of the Fifth

Amendment of the Constitution; (4) a violation of

the UDCA is a state claim that this Court does not

have jurisdiction to adjudicate; (5) the Complaint

fails to state a claim for tortious interference of a

contract under New York law; (6) the Complaint

fails to state a claim for constructive trust; and (7)

there is no independent cause of action alleged

under 42 U.S.C. § 1983.? For the reasons that follow,

the Court GRANTS Defendants’ motions to dismiss

the Complaint in its entirety.

Il. Standing

Article III standing is properly challenged through

a motion to dismiss under Rule 12(b)(]). Alliance

for Envtl. Renewal, Inc. v. Pyramid Crossgates

Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006). A district

court must generally establish that a plaintiff has

Article II] standing first, before deciding a case on

the merits, such as on a Rule 12(b)(6) motion to

dismiss. See id. at 85 (citing Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 101 (1998)). Standing is

challenged on the basis of the pleadings, and thus

the Court accepts as true “all material ailegations of

the complaint, and must construe the complaint in

favor of the complaining party.” Bldg. & Constr.

Trades Council v. Downtown Dev., Inc., 448 F.3d

138, 144 (2d Cir. 2006).

The doctrine of standing is well established to

require that the party who wishes to bring suit must

. The State Defendants and the Conservancy Defendants

set forth almost identical arguments in support of their motions

to dismiss. Unless otherwise noted, the Court discusses both

sets of challenges jointly.

l4a

have suffered an injury to a legally protected right,

an “injury in fact.” Warth v. Seldin, 422 U.S. 490, 95

(1975); Baker v. Carr, 369 U.S. 186 (1962). “An

injury-in-fact must be ‘distinct and palpable,’ as

opposed to ‘abstract,’ and the harm must be ‘actual

or imminent,’ not ‘conjectural or hypothetical.’ ”

Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d

Cir. 2006) (citing Whitmore v. Arkansas, 495 U.S.

149, 155-56 (1990)). Here, Plaintiffs claim that they

have Article III standing on the basis of the Four-

teenth Amendment to the United States Constitu-

tion. (Pls.’ Opp’n Mem. to Defs.’ Mots. Dismiss

(“Pls.’ Opp’n”), at 6.) According to Plaintiffs, their

“standing to bring this action, and to seek relief

under each of the seven claims alleged in the com-

plaint,” is rooted in the Due Process Clause, the

Equal Protection Clause, the Privileges and Immu-

nities Clause, and their substantive due process

rights. (Pls.” Opp’n at 6-12.) The injuries-in-fact

Plaintiffs identif: in their Complaint include the

denial of access, co. rol, and use of the Armory for

traditional military and related purposes; the pre-

vention of the establishment and operation of a mil-

itary history museum and interpretive program in

the Armory’s historic spaces for public education;

the denial to veterans organization members of the

right of free use of the Armory for meetings and

gatherings; and the deprivation to City and State tax-

payers of support for publicly-funded cultural insti-

tutions by diverting audience and donor revenues to

the Conservancy and its favored organizations.

(Compl. 97 69(a)-(d).)

15a

A. Due Process

Turning first to Plaintiffs’ contention that they

have standing to bring this action under the Due

Process Clause, the Court holds that Plaintiffs have

no constitutionally protected right in the Armory

sufficient to confer standing. Plaintiffs have not

been deprived of a life interest: “lifetime respect,

honor, gratitude and compassion” are not judicially

cognizable rights. (Pls.’ Opp’n at 7.) Likewise, Plain-

tiffs have failed to demonstrate precisely how or in

what manner their liberty interests have been vio-

lated.

Plaintiffs allege that they have a liberty right

under the First Amendment to express and associate

with other veterans. (Pls.’ Opp’n at 7.) Yet, the Court

sees no evidence of an obstruction by Defendants of

the rights of Plaintiffs to express their opinions

freely or to associate with one another. The factual

predicate as presented to the Court on this point

consists of an inability to “tell the stories of [Plain-

tiffs] military service, and advocate and install a mil-

itary history museum in the Armory.” (Pls.’ Opp’n at

7) Although the Conservancy’s charter does not per-

mit it to operate a museum (Compl. 99 42, 50, 69),

the Historical Society’s charter does not mention the

Armory and does not mandate that any museum of

the Seventh Regiment’s memorabilia be located

therein (Compl. 141). Thus, Plaintiffs have failed to

allege a palpable injury on this ground.

Furthermore, by the express terms of Chapter 482,

veterans’ groups may have access to the Armory on

application to the Conservancy. Chapter 482 amended

section 183 of the New York Military Law, which

provided that veterans’ groups could have access to

the Armory on application to the officer in charge of

16a

the Armory. Chapter 482 merely shifted the respon-

sibility of granting access to the Armory from the

officer in charge of the Armory to the lessee of the

Armory, the Conservancy. (Conservancy Defs.’ Mem.

at 21.) The Complaint does not allege that the Con-

servancy has taken any steps affirmatively to

restrict applications by veterans groups. The Com-

plaint also does not allege that Plaintiffs have made

any such application to access the Armory. Accord-

ingly, Plaintiffs are unable to demonstrate more than

an injury that is merely speculative.® Cf. Laird v.

Tatum, 408 U.S. 1, 13-14 (1972) Cholding that the

mere knowledge that the army was surveilling civil-

ian political activity and the fear of detriment if

information thus gained were distributed was not

sufficient injury to the plaintiffs’ First Amendment

rights because there was no allegation of specific

objective harm, either present or future); Women’s

Emergency Network v. Bush, 323 F.3d 937, 946-47

(llth Cir. 2003) (holding that plaintiffs failed to

allege that their First Amendment rights had been

violated by a specialty license plate law when the

State had not rejected plaintiffs’ license plate appli-

cation).

Plaintiffs also assert that Fitzgerald and Wells

have a property interest in the Armory as veterans

’ Plaintiffs’ additional assertion that they have a constt-

tutional right to petition the courts for redress of their

gricvances fails because no such allegation is contained in their

Complaint. Plaintiffs may not use their opposition papers to

amend the Complaint by including a new cause of action. See

Shah v. Helen Hayes Hosp., No. 06-4068-CV, 2007 U.S. App.

LEXIS 25323, at *4 (2d Cir. Oct. 29, 2007) (“A party may not use

his or her opposition to a dispositive motion as a means to

amend the complaint.”) (citing Wright v. Ernst & Young LLP,

152 F.3d 169, 178 (2d Cir. 1998)).

17a

of the Seventh Regiment and as representatives of

its successor organizations, including its Historical

Society. (Pls.’ pp’n at 7.) As an initial matter, the lan-

guage of Section 1 of Chapter 482 provides a history

of the 1874 lease that confirms that the Armory is

State property:

It is also found and declared that leasehold

title to the seventh regiment armory is the

property of the state under an indenture of

lease made on September 23, 1874 between

the “mayor, aldermen and commonality of

the city of New York” as lessors, and the

“field officers of the seventh regiment of the

national guard of the state of New York,” as

lessees, which field officers were later

redesignated as the trustees of the seventh

regiment armory building. . . , as amended

by an indenture of lease dated Apri! 23,

1879.

(Coinpl., Ex. D. (2004 N.Y. Laws Ch. 482 § 1) (empha-

sis added)); see also Dalva v. Pataki, No. 116965/05,

Slip Op. at 15 (N.Y. Sup. Ct. Mar. 3, 2006) (“The State

defendants’ argument convinces me that the State is,

indeed, the lessee of the Armory, and may, therefore,

claim the rights of a lessee.”). Even if the Armory

were the property of the Seventh Regiment, how-

ever, Fitzgerald and Wells, as veterans, are not rep-

resentatives of the Regiment and thus have no

property interest in the Armory. Veterans of Seventh

Regiment v. Field Officers of Seventh Regiment, el

al., 14 N.Y.S. 811, 815 (N.Y. App. Div. 1891) (“[V]eter-

ans of the seventh regiment. . . are not members of

said regiment, and the delegation of power to the

field officers of said regiment to exclusively hold

18a

and use the property leased for an armory and drill

rooms by said regiment would ordinarily and natu-

rally exclude the idea of a joint adventure with other

parties.”).

Further, there is no support for Plaintiffs’ claim

that the 107th 'nfantry Regiment Historical Society

is a successor organization of the Seventh Regiment.

(Pls.’ Opp’n at 7.) Plaintiffs have not alleged any

official connection between the Seventh Regiment

and the Historical Society, which is described in the

Complaint as a private organization founded in 1964.

(Compl. 441.) Indeed, the record evinces that the

actual successor organization to the Seventh Regi-

ment is the 107th Corps Support Group. (Compl.,

Ex. D (2004 N.Y. Laws Ch. 482 § 1) (“The 107th corps

support group, a division of the New York state

national guard, is recognized by the department of

the army and the courts of the state of New York as

the lineal descendent of the seventh regiment

.... ).) Plaintiffs therefore have not asserted “such

a personal stake in the outcome of the controversy

as to assure that concrete adverseness which sharp-

ens the presentation of issues upon which the court

so largely depends for illumination of difficult con-

stitutional questions.” Baker, 369 U.S. at 204.

In this same regard, even if Plaintiffs had standing

to assert that Chapter 482 and the Conservancy

lease violate the Contracts Clause of the Fifth

Amendment, it is axiomatic that the Contracts

Clause—which provides in pertinent part that “No

State shall... pass any. . . Law impairing the

obligation of Contracts,” U.S. Const. art. I, § 10—is

inapplicable to the relationships between states and

their municipalities. Trenton v. New Jersey, 262 U.S.

182, 188 (1923) (“The power of the State, unre-

19a

strained by the contract clause. . . over the rights

and property of cities held and used for “govern-

mental purposes” cannot be questioned.”). More-

over, a “city cannot possess a contract with the

State which may not be changed or regulated by

state legislation.” Jd. (citing Town of E. Hartford v.

Hartford Bridge Co., 51 U.S. 511 (1851)); see also

New York v. Richardson, 473 F.2d 923, 929 (2d Cir.

1973) (“[Plolitical subdivisions of a state may not

challenge the validity of a state statute under the

Fourteenth Amendment”). Applying these principles,

Plaintiffs’ claim alleging that Chapter 482 impaired

a contract between officers of the City of New York

and officers of the State National Guard cannot

withstand scrutiny.

B. Equal Protection Clause

Although Plaintiffs do not specifically allege equal

protection of the laws as a cause of action, Plaintiffs

state within their 42 U.S.C. § 1983 claim that, oper-

ating under color of state law, Defendants deprived

them of “their due process and equal protection

rights under the Fourteenth Amendment.” (Compl.

4 102 (emphasis added).) The Court finds this suffi-

cient to put Defendants on notice of an equal pro-

tection claim. Plaintiffs’ equal protection argument,

however, fails.

“Although a plaintiff need not suffer an injury in

fact to have standing to assert an Equal Protection

Clause claim, because standing is created by the

denial of equal treatment resulting from the impo-

sition of a barrier, not the ultimate inability to

obtain the benefit, a plaintiff must nonetheless

demonstrate that he was able and ready to apply for

a disputed program in order to establish standing.”

20a

Filozof v. Monroe Comm. College, No. 04-CV6545L,

2008 WL 4737400, at *9 (W.D.N.Y. Oct. 28, 2008) (cit-

ing Gratz v. Bollinger, 539 U.S. 244, 262 (2003)). As

applicable here, Plaintiffs have failed to show that

they were “able and ready” to apply to the ESDC’s

request for proposals to restore and renovate the

Armory. Although Plaintiffs assert that they were

prevented from doing so because the Conservancy,

not they, received a monetary grant for proposed

restoration and renovation, this does not state an

equal protection violation. (Pls.’ Opp’n at 26.) The

Conservancy received the funds because their pro-

posal was selected by ESDC. Furthermore, Plaintiffs

have not alleged that they attempted to apply, or

would have applied, for access to the Armory but for

the proposed enactment of Chapter 482. See

Clements v. Fashing, 457 U.S. 957 (1982) (noting

that plaintiff's standing to challenge a program on

Equal protection grounds is not vitiated by plain-

tiff’s failure to attempt participation, if it is alleged

that the plaintiff would have done so, had he not

been barred by the challenged policy). Thus, Plain-

tiffs lack standing to challenge Chapter 482 upon the

facts alleged.

C. Privileges and Immunities Clause

Plaintiffs maintain that they have standing to

bring this action based upon the Privileges and

Immunities Clause of the Fourteenth Amendment.

(Pis.’ Opp’n at 8-10.) This cause of action is not

aileged in Plaintiffs’ Complaint and therefore Plain-

tiffs may not raise the issue for the first time in their

opposition papers. Shah, 2007 U.S. App. LEXIS

25323, at *4. Even were the Court to consider Plain-

tiffs’ claim, it is without merit. Contrary to Plaintiffs’

2la

assertions, veterans do not necessarily enjoy special

privileges under the Privileges and Immunities

Clause. See Carrabus v. Schneider, 119 F. Supp. 2d

221, 230 (E.D.N.Y. 2000) (veterans’ preferences in

county employment created by State law were not

essential attributes of national citizenship, and thus

did not merit protection under the Fourteenth

Amendment Privileges and Immunities Clause).

D. Substantive Due Process

Plaintiffs principally argue that their substantive

due process rights have been violated by the

improper transfer of private property from the

Armory Trustees to the Conservancy, in violation of

the Takings Clause of the Fifth Amendment. (PIls.’

Opp’n at 14-15.) The Takings Clause provides that

“private property [shall not] be taken for public use

without just compensation.” U.S. Const. amend. V.

This language has long been understood to guaran-

tee that “one person’s property may not be taken for

the benefit of another private person without a jus-

tifying public purpose, even though compensation

be paid.” Thompson v. Consol. Gas Utils. Corp., 300

U.S. 55, 80 (1937); see also Hawaii Hous. Auth. v.

Midkiff, 467 U.S. 229, 245 (1984). The Fifth Amend-

ment’s prohibitions are applicable to the states

through the Fourteenth Amendment. Phillips v.

Washington Legal Found., 524 U.S. 156, 163-64

(1998); Webb’s Fabulous Pharmacies, Inc. v. Beck-

with, 449 U.S. 155, 160 (1980).

Although Plaintiffs do not allege an outright

usurpation of their private property, similar to tak-

ings claims premised on land use restrictions, the

crux Of Plaintiffs’ claim is that the enactment of

Chapter 482 and the authorization of the Conser-

22a

vancy lease are inconsistent with the physical prop-

erty and use rights they claim. Seventh Regiment

Fund v. Pataki, 179 F. Supp. 2d 356, 36162 (S.D.N_Y.

2002). As explained supra, however, Plaintiffs do

not have a property interest in the Armory. The

Armory is owned by the State, and, assuming that

Plaintiffs have a limited statutory right of access to

the Armory upon application, Plaintiffs have not

alleged that they have applied for and been denied

access to the Armory. Moreover, although veterans

and Seventh Regiment members donated funds for

the building of the Armory in the 1870s, those dona-

tions did not create a property interest in the

Armory itself. Veterans of Seventh Regiment, 14

N.Y.S. at 816. Because only those with cognizable

property interests have standing to bring takings

claims, Plaintiffs lack standing to raise the alleged

substantive due process claim. U.S. Olympic Comm.

v. Intelicense Corp., S.A., 737 F.2d 263, 268 (2d Cir.

1984) (“Only the owner of an interest in property at

the time of the alleged taking has standing to assert

that a taking has occurred.”).

E. Other Possible Grounds for Standing

The Complaint includes two other allegations rel-

evant to the standing inquiry: (1) Plaintiff Wells isa

New York State and City “taxpayer” (Compl. 193-5);

and (2) Plaintiffs were denied access and use of the

Armory’s rental proceeds, giving rise to an action for

tortious interference with contract and the imposi-

tion of a constructive trust (Compl. 99 92, 95-99).

The Complaint alleges that Wells is a New York

State and City “taxpayer” (Compl. 993-5), and

attacks Chapter 482 for “[d]Jepriving City and State

taxpayers of support for publicly-funded cultural

23a

institutions by diverting audience and donor rev-

enues to the Conservancy and its favored private

charities and arts organizations” (Compl. 9 69(d)).

This claim would perhaps have merit if pleaded as a

“taxpayer action,” which is a procedural vehicle

afforded by New York State Finance Law § 123-b

with respect to State action, and by New York Gen-

eral Municipal Law § 51 with respect to municipal

action. Given that neither procedural vehicle is men-

tioned in the Complaint, nor is such a common-law

cause of action included among the seven claims in

the Complaint, Plaintiff Wells has no standing to

challenge Chapter 482 or the Conservancy’s lease as

a New York State or City taxpayer. See Daimler-

Chrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006)

(plaintiffs lacked standing to challenge a tax break

granted by state and local officials because their

interests as taxpayers “in the moneys of the [gov-

ernment] treasury are too indeterminable, remote,

uncertain and indirect to support standing”).

Plaintiffs’ tortious interference claim fares no bet-

ter. (Compl. 492.) This claim alleges that “Defen-

dants’ wrongful actions caused injury and damages

to plaintiffs by denying them access and use of the

Armory and its rental proceeds.” (Compl. 492.) The

Armory’s rental proceeds, however, never accrued to

Plaintiffs. Before the enactment of Chapter 482, the

rental proceeds went to DMNA headquarters, with

half the funds paid as rent to the State Treasury and

the other half distributed among the units of the

organized militia located within the state. N.Y. Mil-

itary Law § 183(5). After the enactment of Chapter

482, the lessee (in this case, the Conservancy)

shall be required to apply all revenues gen-

erated by operations at the Armory to pay

24a

or provide for the costs of repairs, restora-

tion, refurbishment, operating, maintenance

and programming of the Armory and the

uses therein and the activities of the lessee

or subsequent lessee with respect thereto.

(Compl., Ex. D (2004 N.Y. Laws Ch. 482 §3).)

Because Plaintiffs have never been entitled to any

portion of the Armory’s rental revenues, they cannot

establish that they personally have suffered some

actual or threatened injury as a result of the puta-

tively illegal conduct of Defendants. Alliance for

Envtl. Renewal, Inc., 436 F.3d at 85. Accordingly,

Plaintiffs lack standing to maintain an action for tor-

tious interference of contract, or for the imposition

of a constructive trust and a concomitant account

ing, on the basis of denied rental revenues.

F. State Law Violation

Even assuming Plaintiffs had standing, their claim

that the Conservancy lease should be voided for

“fraud and failure to comply with the [New York

State Urban Development Act] in material respects”

is not properly before this Court. (Compl. 9491.)

Under New York law, when a plaintiff seeks to assert

that a determination of a governmental body or pub-

lic official is “in violation of lawful procedure, was

affected by an error of law or was arbitrary and

capricious or an abuse of discretion” and seeks nul-

lification of such action, an Article 78 proceeding is

the appropriate vehicle to address the claim. Abiele

Contracting, Inc. v. N.Y. City Sch. Constr. Auth.,

666 N.Y.S.2d 970, 972-73 (N.Y. 1997). New York law,

however, vests jurisdiction over Article 78 pro-

ceedings solely in state courts. N.Y.C.P.L.R

25a

§ 7804(b) (“A proceeding under this article shall be

brought in the supreme court in the county specified

[by statute].”). District courts sitting in New York

have refused to impinge upon this exclusive juris-

diction. See, e.g., Blatch v. Hernandez, 360 F. Supp.

2d 595, 637 (S.D.N.Y. 2005) (“This [Article 78] claim

must be dismissed for lack of subject matter juris

diction, as New York State has not empowered the

federal courts to consider such claims.”). Accord-

ingly, the Court concludes that it lacks jurisdiction

to consider Plaintiffs’ UDCA claim.

CONCLUSION

For the reasons stated above, Defendants’ motion

to dismiss the Complaint in its entirety is GRANTED.

The Clerk of the Court is directed to close the case.

So ORDERED:

/s/ BARBARA S. JONES

BARBARA S. JONES

UNITED STATES DISTRICT JUDGE

Dated: New York, New York

January 5, 200%

26a

LEASES—CORPORATIONS—

SEVENTH REGIMENT ARMORY

CHAPTER 482

A. 11817

Approved and effective September 21, 2004

AN ACT to amend the military law and the New York

state urban development corporation act, in

relation to a lease of the seventh regiment

armory to a not-for-profit corporation

The People of the State of New York, represented

in Senate and Assembly, do enact as follows:

Additions are indicated by underline;

deletions by strikeout; vetoes by shading

§ 1. Statement of legislative findings and purposes.

It is hereby found and declared that New York

state’s Seventh Regiment Arimory, located in the city

of New York, is an important historic landmark; that

it has been a prominent center of cultural and civic

events since its construction in 1879; that it is of

great military historic value; that the continued abil-

ity to operate the seventh regiment armory for mil-

itary purposes in times of civil or military

emergency is vitally important to the city and state,

and that the physical restoration and refurbishment

of the armory is necessary and important to pre-

serve this structure for current and future genera-

tions of New Yorkers.

It is further found and declared that the armory is

an important civic and cultural facility for the com-

munity in which it is located and for the residents of

27a

the city and state; and that the continued use of the

armory for cultural events and other civic uses is

beneficial to the health, safety, welfare, and educa-

tion of the people of the city and the state, and is

consistent with the armory’s purpose as a military

facility.

It is further found and declared that a portion of

the armory has been successfully utilized for a range

of activities, including use as a shelter for homeless

women that has been operated by the city of New

York and that continued use of a portion of the

armory as a shelter for homeless women is benefi-

cial to the health, safety, welfare and education of

the people of the city and state, and is wonsistent

with the armory’s purpose as a military facility and

is contemplated pursuant to this legislation.

It is further found and declared that the armory

has suffered deterioration in its physical infras-

tructure and plant in recent decades and that the

continued deterioration of the facility must be reme-

died and reversed; that the renovation of the armory

will require the investment of many millions of dol-

lars and that financial circumstances make such

public expenditures very difficult.

It is further found and declared that the restora-

tion and renovation of the armory is in the public

interest and that a partnership between the state

and the private sector is necessary to undertake the

financing of the restoration and future operation of

this historic structure; that the division of military

and naval affairs and the urban development cor-

poration issued a request for proposals from inter-

ested private sector organizations in the year 2000

to undertake the restoration and operation of the

28a

armory. A not-for-profit organization, the seventh

regiment armory conservancy, was named as chosen

developer and deemed to fulfill all financial, orga-

nizational and operational requirements to under-

take this endeavor in partnership with the state.

It is further found and declared that leasehold title

to the seventh regiment armory is the property of

the state under an indenture of lease made on

September 23, 1874 between “the mayor, alderman

and commonality of the city of New York,” as

lessors, and “the field officers of the seventh regi-

ment of the national guard of the state of New York,”

as lessees, which field officers were later redesig-

nated as the trustees of the seventh regiment armory

building (Chapter 518 of the Laws of 1893), as

amended by an indenture of lease dated April 23,

1879. The 107th corps support group, a division of

the New York state national guard, is recognized by

the department of the army and the courts of the

state of New York as the lineal descendent of the

seventh regiment, and the field officers of the 107th

corps support group are recognized as the current

trustees of the armory and successors in interest to

the lessee under the above-cited leases, subject to

the supervision of the New York state division of

military and naval affairs. Pursuant to this act, the

armory is under the general charge and control of

the adjutant general, the commanding general and

senior military officer of the New York state

national guard.

Therefore, it is hereby found and declared that it

is in the public interest for the state, acting through

the division of military and naval affairs by the

authority of the adjutant general, to enter into a

public/private partnership with a not-for-profit cor-

29a

poration dedicated to the preservation of the armory

as a historical, civic and cultural facility for the

community to undertake the renovation and opera-

tion of the armory and to exercise the rights and

powers herein authorized. Furthermore, such lease

and all development-related activities, as well as any

subsequent leases or development-related activities,

shall be administered by the empire state develop-

ment corporation on behalf of the division of mili-

tary and naval affairs and the state.

§ 2. The military law is amended by adding a new

section 180-a to read as follows:

§ 180-a. Lease and operation of seventh regiment

armory

1. Definitions. (a) “Adjutant n .

adjutant general of the state of New York.

(b) “Armory” shall mean the seventh regiment

rmory | - -

East 67th -898 Lexin n avenue and 641-

649 Park avenue, in the county of New York, state of

New York and identified as Block 1401, Lot 1 on the

tax map of in the city of New York bounded by Park

and Lexington avenues and Sixty-sixth and Sixty-

seventh streets.

(c) “City lease” shall mean collectively, the leases

dated September 23, 1874 and April 23, 1879 by and

between the mayor, aldermen and commonality of

the city of New York to the field officers of the sev-

enth regiment.

(d) “Division” shall mean the state division of mil-

itary and naval affairs, established by article nine of

the executive law.

30a

“Lease” shail me yor r erm up to

ninety-nin r e_ ent into between the

state, acting through the een development cor-

poration, as lessor, and the lessee, as tenant, leasing

the armory or portions thereof.

(f) “Lessee” shall mean the tenant, a not-for-profit

corporation dedicated to the preservation of the

armory as a historical, civic and cultural facility for

the community, which is party to a lease with the

state ing thr h the urban development cor-

oration as landlord, leasin armory or portion

thereof.

(g) “Management agreement” shall mean an agree-

ment to be entered into by the state, acting through

orporation, providi for

-term i

on behalf of the state as of i -

tinuing administration and management of the

armory.

h) “Military use” shall mean durin ri which

are not periods of civil or military emergency, use of

a portion of the armory containing approximately

twenty-one hundred square feet, or such lesser area

as the division may determine, located in the portion

of the armory which is not a designated New York

city landmark (i.e., not in the historic rooms located

on the first and second floors or the drill hall), for

offices or administrative functions of the division,

and use by the division during any periods of civil or

military emergency.

(i) “Periods of civil or military emergency” shall

mean any period during which an order of the adju-

sla

tant general directing a response to a civil or mili-

tary emergen is in t. Said order shall have

effect in relation to this section only in the event of

n order by th jutant ge ] cifically assert-

ing control of areas within the armory.

i) “Shelter use” shall mean use durin eriods

which are not periods of civil or military emergency,

the city of New York shall have the right to access

and use sufficient and suitable space for the current

and uninterrupted operation of the shelter by th

city of New York, as well as usual and customary

building services and utilities, including but not lim-

ited to heat, water and electric, for use as a shelter

for homeless persons.

(k) “Urban development corporation” shall mean

the New York state urban development corporation,

a public benefit corporation of the state, doing busi-

ness as the empire state development corporation.

2. State ownership of facility and fixtures. (a) The

acting throu the division, i nd shall be

re ized as and declared to he lawful suc-

SSO he interest of the lessee under the cit

lease. N ther rson or rty, whether through

claims or entitlements of past or continuing use,

occupancy, improvement or otherwise, is or shall be

recogniz s having any lawful rights in r ect of

the armory other than as may be expressly granted

by, and subject to, the applicable subdivisions of

section one hundred eighty-three of this article.

(b) All improvements, betterments, fixtures,

equipment, ornaments, decorative elements, and

similar items affixed or attached to the armory

32a

building (i.e., all items other than moveable personal

roperty which is not affixed the walls or other

parts of the building) are hereby recognize n

declared to be an integral part of the armory and

property of the state, and any and all persons who

have heretofore installed or paid for the installation

of any of the foregoing items are deemed to have

donated such items to the state as of the time of the

installation of such items in the armory.

3, Lease and operation of armory; certain provi-

sions of this chapter not applicable. (a) Except with

respect to expenditur made the state or the

division in connection with military use or the oper-

ation of the armor ring a rio f civil or mili-

tary emergency, the following provisions of this

rticl all not ly to the repair, r ration

refurbishment or operation of the armory pursuant

to the lease or the management agreement: section

one hundred seventy-eight, subdivisions two and

three of section one hundred eighty and section one

hundred eighty-one.

’b) Th rane c ; | ined piahih,

two of this article shali apply only with respect to

military use of the portions of the armory not

mised der the lease, and with respect to periods

of civil or military emergency, and shall not apply to

the operations of the armory under the lease or the

management agreement.

(c) Except with respect to military use and during

eriods of civil or militar mergency, section on

hundred eighty-three of this article shall not apply

to the operations of the armor ursuant to the

lease or the management agreement. The following

33a

provisions shall apply in lieu of such section one

hundred eighty-three:

of the sociations of

veterans de ibed in ragraph of subdivision

one of such section one hundred eighty-three, the

lessee or the manager pursuant to the terms of the

Management agreement shall provide a proper and

convenient room or rooms or other appropriate

space in the armory where such posts or chapters

may hold regular and special meetings and organi-

zational social events of a private nature, without

the payment of any charge or expense therefor, pro-

Vi re wi se

ort rs the terms

of the management agreement, including anv use by

third parties contracted for under subparagraph (ii)

of this paragraph.

ii) The armory may be used ny person, firm

association, corporation, or municipal entity, pro-

vided that such person, firm, association or corpo-

ration enters into an agreement with the | or

the manager pursuant to the terms of the manage-

ment agreement permitting such use. The terms of

an ement tered into between the lessee or

the manager pursuant to the terms of the manage-

ment agreement and a user shall provide for such

usage to cease during any periods of civil or military

emergency.

(d) The provisions of sections one hundred eighty-

five, one hundred eighty-six and one hundred eighty-

seven of this article shall not apply to the armory.

(c) The management agreement and lease shall

not apply to shelter use. Shelter use shall be gov-

34a

erned by a separate agreement between the city of

New York, the lessee and the state of New York:

such separate agreement shall be executed prior to

the execution of the lease.

§ 3. Section 1 of chapter 174 of the laws of 1968,

constituting the New York state urban development

corporation act, is amended by adding a new section

39 to read as follows:

§ 39. Lease and operation of seventh regiment

armory. (a) The corporation is hereby authorized to

ton If of t tate and the division of militar

and naval affairs to enter in ] e€ or su n

leases and the man ment agreem n If of

te and ivisi i ee, s uent

lessee or the manager pursuant to the terms of the

management agreement in order to accomplish the

purposes of this section. The leasing of the armory

t lessee or subsequent 1 e d the entranc

into > mM ment agre nt and the air

restoration and refurbishment of the armory and

operation thereof by a lessee or subsequent lessee

for cultural and other civic uses pursuant to the

lease is hereby declared to be a valid use under the

city lease, and is undertaken for public purposes.

b lease with al ee ubse nt lessee

authorized this section shall r ire ales or

t ee to unde ram of repair

restoration ; refurbishn d to

manage and use the same as a facility for cultural

and other civic uses. The lease shall demise all por-

tions of the armory other than those reserved for a

homeless shelter for women operated by the city of

New York pursuant to agreement with the state and

for that reserved fo ilitary use by t ivision.

35a

e i Oo remises allocated to the : |

f omeless women shall b i ble

space for the curr Ser art ca ccaeunietatere Gn of

t r_ by the cit tf New York. The division

llc he 107th corps support group or i in-

eal descendent to maintain military use within the

r rv ions of the armory, Th ivision, and

the city of New r Ss iv ] r n-

sible to repair and maintain their reserved premises,

including the costs of renovation a i upted

use, and to pay an annual common maintenance

charge to a lessee or s les ver

re i aintenance an eration

of the on portions of : see or

subsequent lesse ll be required to a all rev-

e »nerated b rati t the opa

or provide for costs of repairs, restoration, refur-

bishment, operating, maintenance and programming

of the armory and the us herei d the activities

of the lessee or subsequent lessee with respect

thereto.

The corporation, in carrying out its autho-

rization his sectio exercise all of the

—_ granted it in law, as if fully enumerated

herein. Without limiting the generality of the fore-

going, the powers granted to the corporation under

sections sixteen and twenty-two of this act shall be

utilized by the corporation in its administration of

the lease, and shall be applicable in respect to the

repair, restoration, refurbishment and operation of

the armory pursuant to the lease.

d) Inn vent shall » les sequent

lessee be deemed a state = or an or or an

instrumentality of the state by reason of the lease or

36a

this section or any of the activities of the lessee or

subsequent lessee with respect to the armory pur-

suant to the lease or this section.

e) Except with respect to military use or periods

of civil or militar n tion involv-

ing the armory that may have a significant effect on

h Vi n i

agency having principal responsibility for carrying

out or approving such action for purposes of article

eight of the environmental conservation law.

§ 4. Construction. This act, being necessary for the

welfare of the state and its inhabitants, shall be lib-

erally construed so as to effect its purposes.

§ 5. Severability clause. If any section, clause or

provision of this act shall be unconstitutional or be

ineffective in whole or in part, to the extent that it is

not unconstitutional or ineffective it shall be valid

and effective and no other section, clause or provi-

sion shall on account thereof be deemed invalid or

ineffective.

§ 6. This act shall take effect immediately.

37a

[LETTERHEAD OF 7TH REGIMENT

ARMORY CONSERVANCY RESTAURANT, LLC]

October 6, 2000

Mr. Wade Thompson

Chairman

Seventh Regiment Armory Conservancy

C/o Thor Industries

230 Park Avenue, Suite 618

New York, N.Y. 10169

Dear Mr. Thompson:

Anne Rosenzweig and Night Sky Restaurants are

pleased to submit our bid in response to your

Request for Proposals for restaurant and catering

services at the Seventh Regiment Armory. We are

confident that our model, in which the restaurant

and banquet operations are combined into a single

entity with both fine dining and banquet space expe-

rience, will be an effective way to provide fabulous

food to visitors at the Armory.

We look forward to discussions about the details

of our proposal and welcome any questions you

might have concerning our experience and our com-

mitment to this project.

Yours sincerely,

/s/ DAVID EMIL

David Emil

for Night Sky Restaurants and

Anne Rosenzweig

cc: Anne Rosenzweig

EXHIBIT I

38a

[LETTERHEAD OF JOSEPH BAUM &

MICHAEL WHITEMAN CoO., INC. ]

October 4, 2000

Mr. Wade Thompson

Chairman

Seventh Regiment Armory Conservancy

C/O Thor Industries

230 Park Avenue, Suite 618

New York, NY 10169

Dear Mr. Thompson:

Joseph Baum & Michael Whiteman Co. and Tentation

Potel & Chabot Caterers were pleased to submit a

bid in response to your request for proposals for

restaurant and catering services at the Seventh Reg

iment Armory. We look forward to further discus

sions about the range and excellence of the food

services that we can provide.

Yours sincerely,

/s/ MICHAEL J. WHITEMAN

Michael J. Whiteman

EXHIBIT J

39a

| LETTERHEAD OF RESTAURANT ASSOCIATES]

October 4, 2000

Mr. Wade Thompson

Chairman

Seventh Regiment Armory Conservancy

C/O Thor Industries

230 Park Avenue, Suite 618

New York, NY 10169

Dear Mr. Thompson:

Restaurant Associates is very pleased to submit a

bid in response to your request for proposal for a

restaurant and catering services at the Seventh Reg-

iment Armory. We are looking forward to discussing

the opportunities and partnership further.

Restaurant Associates has a great deal of experience

in cultural centers, museums, and performing arts

centers. We would truly appreciate the opportunity

to apply this expertise to the armory and work to

surpass all your food service expectations.

Sincerely,

/s/ Ed Sirhal

Ed Sirhal

Senior Vice President Development

EXHIBIT K

[PAGE INTENTIONALLY LEFT BLANK]

40a

el)

EXHIBIT GI

|

i

| +seetene

“were

}

en

Bevarar & lobby Queer Commins 160

Sab-exral 1,970

Ocher

Mechanica 30

Stairs North End 195

South End 250

Bevator 288

Seb>Total 720

N ae

TOTAL First Roar NSF Adminicroion Bulking 430} : ee

TOTAL Acoual GSF “dmenrraton Sudding 18726

Floor Use Location bd Capacity SpecsiNotes

(T= tones, U= urinal)

Corporete Entertaining : .

Corporate Rana 12 Company Rins 10,094 capac: 30 28, standing —

Food prep 590

=e iio 10,684 enema a

Patron Facilities

Men's Room 210 7TBU

Ladies Room 400 T

Lobby Hal 3,67) jcapactty: 306

Subtotal 428|

Other

Mecharwcal 114

Sais North End 19%

South End no

Gevitor 200

Seb-total 2]

TOTAL Second Floor NSF | Administration Building 1§,694

TOTAL Actual GSF Administration Building 18,726

Gallery Offices 1,015

Galery Seorage__ Ld

Mechanical 103

Seairs 42)

Bevator 200

TOTAL Second Maxzanine _|Administration Building 1,489 im

TOTAL Actual GSF Administration Budding 1,742

Galleries 10,080

Oflices/Seorage’ Other 156

Concessions 550

Ladies Room 215 éT

Mens Room 217 2TRU

Lounge a

Coat Room 60

Lobby Hall 165

Machanical 109

Stairs North End 1%

South End ry

Bevnor 200

|__| TOTAL 5rd Floor NSF Administration Buikding 16,017

{__ [TOTAL Actual GSF Building: (8,726

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Per

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